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Brooks v. Serio

United States District Court, W.D. North Carolina, Charlotte Division

November 6, 2019

MARTIN JAMES BROOKS, Plaintiff,
v.
JENNIFER SERIO, Defendant.

          ORDER

          Max O. Cogburn Jr. United Stales District Judge

         THIS MATTER comes before the Court on Defendant's Motion to Dismiss. (Doc. No. 5).

         I. BACKGROUND

         Plaintiff Martin James Brooks and Defendant Jennifer Serio Brooks are former spouses, having divorced on June 14, 2018. The parties have two children together.

         A. Plaintiff's First Action Against Defendant (the “Domestic Action”)

         Plaintiff filed an action against Defendant on April 11, 2018, in the North Carolina General Court of Justice, District Court Division, captioned Martin James Brooks v. Jennifer Serio Brooks, McDowell County file number 18-CVD-315 (the “Domestic Action”). In the Domestic Action, Plaintiff brought claims related to the parties' domestic separation, including claims for child custody, child support, equitable distribution, and absolute divorce. Defendant filed an Answer and Counterclaims on June 13, 2018, bringing claims for child custody, child support, postseparation support, alimony, attorneys' fees, and equitable distribution. As of the filing of this action, only the claim for absolute divorce was fully resolved.

         B. Plaintiff's Second Action Against Defendant (the “Domestic Violence Action”)

         Plaintiff filed an application for a domestic violence protective order against Defendant on June 3, 2019, in the North Carolina General Court of Justice, District Court Division, captioned Martin J. Brooks v. Jennifer J. Serio, Rutherford County, file number 19-CVD-636 (the “DV Action”). Plaintiff filed the application pursuant to North Carolina's Chapter 50B, which governs domestic violence and provides for the entry of domestic violence protective orders. In that action, Plaintiff filed his original Complaint and Motion for Domestic Violence Protective Order (the “original DV Complaint”) on June 3, 2019. (Ex. A). Plaintiff filed an Amended Complaint (Domestic Violence Protective Order) (the “Amended DV Complaint”) on June 11, 2019. (Ex. B). Among other things, the Amended DV Complaint both incorporated by reference the claims and allegations of the original DV Complaint and expanded the request for relief. (Ex. B at p.1; Ex. B at pp. 4-5).

         In the DV Action, Plaintiff made various factual allegations to support his request for a protective order against Defendant. That is, on the form titled “Complaint and Motion for Domestic Violence Protective Order, ” Plaintiff filled out Section 4, which states, “The defendant has attempted to cause or has intentionally caused me bodily injury; or has placed me or a member of my family or household in fear of imminent serious bodily injury or in fear of continued harassment that rises to such a level as to inflict substantial emotional distress; or has committed a sexual offense against me in that: (Give specific dates and describe in detail what happened.).” In this section of the form, Plaintiff handwrote the following:

invasion of privacy/violation of ECPA and CFAA spying on a spouse/snooping email and cell intentional infliction of emotional damage revenge porn, cyberstalking computer trespass, hacking, defamation, libel, slander, stalking, harassment.

(Ex. A, p. 3; Ex. B, p. 5). On the form, Plaintiff checked off numerous actions that he wanted as relief, including an order for Defendant not to assault, threaten, abuse, follow, harass, or interfere with Plaintiff and his children, an order for Defendant to stay away from and his online accounts, an order prohibiting Defendant from possessing or purchasing a firearm, an order requiring Defendant to attend an abuser treatment program, and an order for Defendant “to stop harassing [a co-worker of Plaintiff] and all other business clients, associates, or personal contacts.” (Id. at 4-5).

         On June 11, 2019, before a hearing was held on the emergency protective order in the DV Action, the parties reached an agreement in which the DV Action was dismissed with prejudice pursuant to a handwritten Memorandum of Judgment entered in the Domestic Action (“Memorandum of Judgment”). (Ex. 4). The Memorandum of Judgment enjoined Defendant from accessing Plaintiff's online accounts (e.g. financial, email, and social media accounts) and prevented Defendant from further disparaging Plaintiff and his business.

         C. Plaintiff's Pending Action Against Defendant in this Court

         Plaintiff filed the pending action in this Court on June 24, 2019, thirteen days after entry of the MOJ/Order in the DV Action.[1] Here, Plaintiff makes the following, factual allegations against Defendant, many of which mirror factual allegations made in the DV action: (1) Defendant accessed or attempted to access Plaintiff's iCloud account on various occasions; (2) Defendant accessed Plaintiff's text correspondence, saved various messages, sent messages on Plaintiff's behalf, and sent messages to herself; (3) Defendant accessed or attempted to access Bank of America accounts belonging to Plaintiff; (4) Defendant changed the email associated with Plaintiff's Instagram account; (5) Defendant used Plaintiff's name and photo to create a fictitious Instagram account to impersonate Plaintiff and then engaged in various activities with that account; and (6) Defendant accessed or attempted to access Plaintiff's Dropbox account in order to obtain information contained therein. Based on the above factual allegations, Plaintiff asserts claims for violations of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. §§ 1030(A)(2)(C), 1030(A)(5)(C) (Counts One and Three); ...


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